WU Tong
Law School, Minzu University of China, Beijing 100081, P. R. ChinaD915.3
The advent of electronic data has changed the application of traditional search and seizure, the way of search firstly and then seizure has been unable to effectively respond to electronic data collection activities. In order to protect the authenticity and integrity of electronic data, China’s relevant electronic data collection norms provide that "the original storage medium of electronic data should be seized in principle if it could be seized". In judicial practice, investigators often understand it as "if the storage medium could be seized, electronic data storage medium should be seized in principle". This leads to the requirements originally aimed at the integrity and authenticity of electronic data becoming the basis for authorizing investigators to carry out "general seizures". General seizure firstly and then search comprehensively has become the practice norm for electronic data collection. Although general collection can effectively respond to the many challenges posed by electronic data investigation practice, freedom from arbitrary search and seizure is a fundamental right enjoyed by citizens in criminal proceedings. The emergence of general collection will inevitably lead to the contradiction between the method of electronic data collection and the specificity of search and seizure objects. In comparative jurisdictions, Japanese and American criminal proceedings have formed two reform programs by their different understanding of the concepts of search and seizure: one is restricting general seizure and another is restricting general search. The former insists on the role of physical standards in limiting electronic data collection, and advocates that investigators’ seizures in physical space should be restricted. This can protect the property rights of data holders and also maintain the basic position that search and seizure should be public investigative measures. The latter attaches importance to the authorizing and regulating function of prior warrant review on investigative measures. As long as the investigative act meets the criteria of search and seizure, it can be given legitimacy by a neutral judge issuing a warrant for search and seizure, which is not directly related to whether its objects are tangible or intangible. Limiting general search can not only protect the privacy of data holders from excessive infringement, but also deter illegal investigation behaviors through the sanctioning consequences of excluding illegal evidence. How to limit the scope of electronic data search and seizure is a difficult problem that must be faced in the legal process of China’s investigation procedures. At the normative level, the current procedural rules of electronic data collection have not yet received due attention. In this regard, China needs to clarify the relationship between electronic data search and seizure and traditional search and seizure, and construct electronic data collection procedures with emphasis on limiting general seizure. Specific distinction should be made between the relevance of the carrier and the relevance of electronic data, and the obligation to assist in the investigation of electronic data access should be clarified, with emphasis on safeguarding the right of data holders to be present or to be informed afterwards.
吴桐.论电子数据搜查、扣押的取证范围限定[J].重庆大学学报社会科学版,2024,30(6):250~262
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